WASHINGTON — While most of Washington is focused on the “fiscal cliff,” the Senate has been engaged in a debate this week over the function of the most notable and notorious procedural trick in the chamber’s rulebooks: the filibuster.

The filibuster allows minority party senators to block consideration of legislation unless supporters are able to secure 60 votes for passage. Republicans, with their 47 members, have used the filibuster, by Democrats’ count, more than 300 times since Democrats took back control of the chamber in 2007, to block everything from legislation introduced by Democrats to White House judicial appointments.

The filibuster has become such a thorn in Democrats’ sides that for the first time, Majority Leader Harry Reid has said it’s time to change the way it works, by changing which Senate procedures are subject to the filibuster and requiring actual talking filibusters on the Senate floor — a proposal that has led to understandable opposition from Republicans.

Minnesota’s two senators, Amy Klobuchar and Al Franken, both pitched plans to reform the filibuster before the 112^th Congress started back in January 2011. Their efforts largely failed then, but both said they’re heartened by Reid’s openness to changing the rule now.

“I think now it’s pretty clear that you’ve got a majority of Democrats supporting a change,” congressional scholar Norm Ornstein said. “They have to be careful that they do it right.”

Filibuster and past reform efforts

The filibuster has its roots in an early 19^th century re-writing of the Senate rulebook. The change, coupled with a new rule added in the 1910s, allowed for unlimited debate on an issue unless enough senators, two-thirds at first, voted to end debate and move forward with consideration of legislation (a move that’s now called “invoking cloture”).

REUTERS/Mike SegarWalter Mondale

The filibuster was used infrequently during the next 150 or so years: it gained notoriety, perhaps, not because of its actual usage, but its appearance in the 1939 film “Mr. Smith Goes To Washington,” in which Jimmy Stewart’s character gives an hours-long speech to hold up action on the floor of the Senate.

By the 1970s, it was used or threatened with enough regularity that a group of senators, led by Minnesota Democrat Walter Mondale, sought, successfully, to lower the threshold to invoke cloture from 67 votes to 60. That was the last meaningful change to the filibuster rule, and now Mondale says it’s time for the Senate to reform it again.

“We’ve got to get some movement in the Congress,” Mondale said in an interview. “The rule leads to a paralysis. It’s really gotten to the point where deep reforms are needed.”

What reform could look like

Reid is reportedly looking at two main reforms to the rule: exempting the “motion to proceed” (the formal step the Senate takes before considering legislation) from the filibuster, and requiring senators looking to filibuster to actually hold the floor while doing so — in other words, a filibustering senator and his allies talk as long as they can, “Mr. Smith”-style, and once they have exhausted themselves, the Senate would be able to pass legislation with a simple majority vote.

The two proposals were prongs in a five-point filibuster reform package Klobuchar introduced last year with New Mexico Sen. Tom Udall. She’s been an especially strong proponent of the “talking filibuster” detailed above.

Such a filibuster isn't required in the Senate today — if the majority isn't able to get 60 votes to move forward on a bill, the minority has effectively blocked it without the need for an indefinite floor speech.

REUTERS/Jonathan ErnstSen. Amy Klobuchar

“If a member of Congress wants to stop a bill, they shouldn’t just be able to put in a filibuster and go home for the weekend,” she said though a spokesperson. “They should have to stand there and make their argument. Once they have to start explaining to America why they’re filibustering a bill, they’ll stop and we’ll be able to make progress on legislation that matters to Americans.”

Franken said he’s happy Reid has come around on changing the filibuster, though his preference is a more radical change to the system: Rather than requiring 60 votes to end debate, he wants to require 41 votes to keep it going.

“I still think that’s a very elegant and simple way to do this,” he said. “The idea that you need 41 votes to continue [delaying] debate, as opposed to 60 votes to start debate, would require those who are filibustering to actually show up. I think that’s the bare minimum that we should expect.”

Ornstein said that plan would work better than the “talking filibuster.” The idea for filibuster reform is to speed up the legislating process in the Senate, he said. A talking filibuster could still drag out debate, especially if there is a large group of minority senators so opposed to moving forward that they take revolving turns holding the floor, he said.

Rule change could be ‘nuclear’

Reid and Republican minority leader Mitch McConnell have sparred on the Senate floor this week over not just whether the filibuster rule should change, but the means by which it’s changed.

Democrats say they have the right to change the rules of the Senate by a simple majority vote at the beginning of the new Congress in January, as opposed to the two-thirds majority usually required. Supporters of this plan call it the “constitutional option,” because the Constitution appears to provide the Senate with the option of changing its rules by a simple majority vote. Others have a more colorful name for it: the “nuclear option,” because such a change would bring about chaotic disapproval from the minority party.

Republicans tried such a maneuver in 2005, when Democrats, then in the minority, were blocking George W. Bush’s judicial nominees. At the time, Reid and then-Sen. Barack Obama (who supports filibuster reform) spoke out against the move.

But the constitutional option has been used before to change the rules — Mondale and Democrats initially used such a maneuver in 1975 before senators compromised on the 60-vote rule. Franken said he’d prefer to find compromise before going that route, but indicated he was open to using it if all else fails.

Republicans say filibuster protects minority’s rights

Reid announced this week that he’d come around to pushing filibuster reform, likely because of the way Republicans have used it this session, and because so many Democrats in his caucus want to make a change, Ornstein said.

REUTERS/Jason ReedSen. Al Franken

“He was reluctant to change the filibuster up until a year ago for the same reason that congressional leaders who preceded him were,” he said. “It’s a two-sided weapon. You can end up in the minority pretty soon yourself and might very well want to have it available to you.”

McConnell was quick to note this week that Democrats opposed changing the filibuster when they were in the minority.

But Democrats have framed the changes as minor tweaks meant to speed up the pace at which the Senate is run (invoking cloture is a days-long ordeal, and having to do it twice, once to consider legislation and once again to pass it, can significantly delay proceedings). But Republicans have cried foul, saying that the Senate’s need for more consensus — via the 60-vote threshold to invoke cloture — is one of the upper chamber’s most important roles in government.

The rules are there, “so that majorities can’t simply roll over those who disagree with them,” McConnell said in a floor speech Monday, his first of three on the subject this week. “And, just as importantly, so majority parties are forced to resolve the great issues of the moment in the middle, ensuring their stability and permanence.”

For what it’s worth, Mondale tends to agree with that. He has said the filibuster rule should remain on the book, but the burden to overturn it should be decreased to 55 votes, and filibustering senators should hold the floor if they want to prevent debate.

But he said McConnell was exaggerating the way a rule change would affect the relationship between the Senate’s minority and majority parties, next year and beyond. 

“The best place to be in the world, if you’re in the minority, is the United States Senate, and that will be true after the rule is changed,” he said.

Devin Henry can be reached at dhenry@minnpost.com. Follow him on Twitter: @dhenry